# Gerasimou v. Brenes

> District Court, E.D. New York · January 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10307471

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
BASTERN DISTRICT OF NEW YORK
ee
EVANGELOS GHRASIMOU,
Plaintiff, MEMORANDUM & ORDER
15-CV-6892 (EK) (VMS)
-against-
MICHAEL CILLIS, in his individual and
official capacities, and SCOTT
BRENES, in his individual and
official capacities,!
Defendants.
ee
ERIC KOMITEE, United States District Judge:
Plaintiff Evangelos Gerasimou brought this action
against the City of New York and two NYPD officers. He alleged
various civil-rights violations arising out of a traffic stop on
June 16, 2015, during which he was arrested on charges of
possessing a forged temporary license plate and operating a
vehicle without a license plate. The judge previously assigned
to the case ruled on Defendants’ summary judgment motion in
December 2019, following which only two counts remained: Count
Three, alleging false arrest in violation of 42 U.S.C. § 1983,

+ In the parties’ proposed joint pretrial order, Plaintiff agreed that
the “caption should be amended to include only defendants Brenes and Cillis,
as all other defendants were dismissed by the Court on December 17, 2019.”
ECF No. 34 at 1. The parties also stipulated that Sergeant Brenes’s first
name is “Scott,” not “John.” Id. Accordingly, the Clerk of Court is
directed to amend the caption of this action by removing the City of New York
as a defendant and replacing “John Brenes” with “Scott Brenes.”

and Count Four, alleging failure to intervene in violation of
42 U.S.C. §§ 1983 and 1986 — in both cases against the
individual officers.? ECF No. 28. No claims remain pending
against the City.?
The two officers now seek reconsideration of the
denial of summary judgment on the two remaining counts. They
argue that both claims are untenable because they had probable
cause to arrest and, in any event, their actions are shielded by
the doctrine of qualified immunity. See ECF No. 37. For the
following reasons, I grant their motion and dismiss the
remaining claims.
I. Background?’
On the night of June 16, 2015, Officer Cillis and
Sergeant Brenes were on patrol in Queens when they observed

2 These two remaining claims are both asserted against both officers;
they refer to “the Defendants” or “the Defendant Officers” together. See ECF
No. 1 42-55 (Count Three), 56-65 (Count Four).
> Plaintiff initially brought additional Section 1983 claims for
excessive force, abuse of process, malicious prosecution, seizure, and
municipal liability, as well as conspiracy claims under 42 U.S.C. § 1985. In
December 2019, Judge William F. Kuntz II granted summary judgment on all but
the false-arrest and failure to intervene claims. See ECF No. 28. This case
was transferred to the undersigned in January 2020.
4 The facts in this order are drawn from the parties’ submissions in
connection with the motion for summary judgment, including Defendants’ Local
Rule 56.1 Statement (“Def. 56.1” (ECF No. 21)), and Plaintiff's opposition
thereto (“Pl. 56.1” (ECF No. 25)). I construe the facts in the light most
favorable to Plaintiff. Citations to a party’s Rule 56.1 Statement
incorporate by reference the documents cited therein. For convenience,
Defendants’ supporting memorandum of law will be referred to as “Def. Br.”
(ECF No. 22) and Plaintiff’s opposition submission as “Pl. Opp.” (ECF No.
24).

Gerasimou’s vehicle. Gerasimou was driving a Mercedes-Benz that
did not have a “license plate displayed where a license plate
should be displayed on the vehicle.” Def. 56.1 ¶ 8; Pl.
56.1 ¶ 4. The officers stopped Gerasimou’s vehicle. Def. 56.1
¶ 10. As Officer Cillis approached the car, he saw a temporary

paper license plate taped to the interior of the rear window.
Id. ¶¶ 11-12; Pl. 56.1 ¶ 5. After obtaining Gerasimou’s
registration and insurance documents, the officers retrieved the
temporary plate from inside the rear window. Def. 56.1 ¶ 13.
Officer Cillis reviewed the temporary license plate
and noticed that certain words were faded or missing, and parts
of the first letter of the license plate’s alphanumeric sequence
were cut off. Id. ¶ 14; see also photograph below. Based on
this, Cillis believed that the document was forged. See
Criminal Complaint dated June 22, 2015, ECF No. 20-7. Cillis
testified that he had received NYPD training on how to recognize
forged documents, and that he had made previous arrests for

forgeries. Cillis Dep. 93:4-96:5, ECF No. 23-2. Sergeant
Brenes agreed with Cillis’s determination. Def. 56.1 ¶ 15.
Brenes testified that in his experience, officers assessing a
government document for forgery generally consider whether the
document appears to be a photocopy, whether any misspellings
appear, or, in the case of a paper tag, whether any information
is cut off. Id. ¶ 16; Brenes Dep. 58:16-59:1, 59:20-25, ECF No.
23-6. “If it’s cut off,” he explained, “then it’s been tampered
with.” Brenes Dep. 59:14-15.
The officers informed Gerasimou that the paper
license plate was a “fraudulent instrument” and a “fake plate.”
Def. 56.1 ¶ 18. Gerasimou responded that the license plate had

been issued by a Mercedes-Benz dealership in Delaware, and he
urged the officers to call the dealership to verify its
validity. Pl. 56.1 ¶¶ 14-15. The officers called the
dealership, but no one answered. Def. 56.1 ¶ 23. Officer
Cillis arrested Gerasimou for Possession of a Forged Instrument
in the Third Degree, in violation of N.Y.P.L. § 170.20, and for
operating a vehicle without a license place, in violation of
V.T.L. § 402-1. Id. ¶ 24. Gerasimou was arraigned on June 26,
2015, but the charges were ultimately dismissed. Id. ¶ 28-29.
Plaintiff testified at his deposition that the
Mercedes was, in fact, leased from the Delaware car dealership
and the temporary license plate was valid, and Defendants do not

dispute that contention at this stage. Gerasimou Dep. 26:12-
28:21, ECF No. 23-3.
Legal Standard
Summary judgment is appropriate if the record
demonstrates that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed R. Civ. P. 56(a). “A fact is material for these
purposes if it might affect the outcome of the suit under the
governing law. An issue of fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263
F.3d 208, 212 (2d Cir. 2001).°
The movant has the burden of demonstrating the absence
of a question of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). “If the moving party meets this
burden, the non-moving party must come forward with specific
facts showing that there is a genuine issue for trial.”
LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). If the
non-moving party fails to do so, the claim must be
dismissed. Entry of summary judgment is appropriate “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A motion for reconsideration “is generally not favored
and is properly granted only upon a showing of exceptional
circumstances.” Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55
(2d Cir. 2004). Typical grounds for reconsideration include “an
intervening change of controlling law, the availability of new

° Unless otherwise noted, when quoting judicial decisions this order
omits all alterations, citations, footnotes, and internal quotation marks.

evidence, or the need to correct a clear error or prevent
manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov,
Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013).
These limitations are less restrictive, however, when the
challenged decision is an interlocutory order such as the denial

of summary judgment. See Vornado Realty Tr. v. Marubeni
Sustainable Energy, Inc., 987 F. Supp. 2d 267, 276 (E.D.N.Y.
2013) (“Because the denial of a motion for summary judgment is
an interlocutory order, the trial court is free to reconsider
and reverse its decision for any reason it deems sufficient,
even in the absence of new evidence or an intervening change in
or clarification of the substantive law.”).
Discussion
The police officers contend that they are entitled to
qualified immunity on Plaintiff’s false-arrest and failure-to-
intervene claims. Under Supreme Court and Second Circuit
precedent, “[t]he doctrine of qualified immunity protects

government officials from suit if their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Gonzalez v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). To determine
whether the doctrine applies, a court must assess: “(1) whether
[a] plaintiff has shown facts making out [a] violation of a
constitutional right; (2) if so, whether that right was ‘clearly
established’; and (3) even if the right was ‘clearly
established,’ whether it was ‘objectively reasonable’ for the
officer to believe the conduct at issue was lawful.” Id. “The
objective reasonableness test is met — and the defendant is
entitled to immunity — if officers of reasonable competence
could disagree on the legality of the defendant’s actions.”
Rohman v. N.Y.C. Transit Auth., 215 F.3d208, 216 (2d Cir. 2000).
This standard protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,
341 (1986). Because Defendants have invoked the doctrine of
qualified immunity, I review the merits of Plaintiff’s false-
arrest and failure to intervene claims through this lens.
A. Count Three: Section 1983 Claim for False Arrest
“Section 1983 provides a cause of action for the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws of the United States.” Wilder v.
Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990). “A Section 1983
claim for false arrest, resting on the Fourth Amendment right of
an individual to be free from unreasonable seizures, including
arrest without probable cause, is substantially the same as a
claim for false arrest under New York law.” Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996). Under New York law, a plaintiff
alleging false arrest must show that “(1) the defendant intended
to confine the plaintiff, (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the
confinement and (4) the confinement was not otherwise
privileged.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118
(2d Cir. 1995). Only the fourth element is at issue on the
current motions.

The existence of probable cause precludes a finding
for the plaintiff on that element; it is therefore a “complete
defense” to a false-arrest claim. See Covington v. City of New
York, 171 F.3d 117, 122 (2d Cir. 1999). Probable cause can
exist “even where it is based on mistaken information, so long
as the arresting officer acted reasonably and in good faith in
relying on that information.” Bernard v. United States, 25 F.3d
98, 102 (2d Cir. 1994). Once a police officer has a reasonable
basis to believe that he has probable cause to arrest, the
officer “is not required to explore and eliminate every
theoretically plausible claim of innocence before making an
arrest.” Garcia v. Does, 779 F.3d 84, 93 (2d Cir. 2015). An

arresting officer is “entitled to qualified immunity from a suit
for damages if he can establish that there was arguable probable
cause to arrest.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.
2004) (emphasis added).
Here, Officer Cillis and Sergeant Brenes had at least
arguable probable cause to arrest Gerasimou for possession of a
forged instrument. A person is guilty of criminal possession of
a forged instrument in the third degree when, “with knowledge
that it is forged and with intent to defraud, deceive or injure
another, [s]he utters or possesses a forged instrument.” N.Y.
Pen. L. § 170.20. A “forged instrument” is defined as “a
written instrument which has been falsely made, completed or
altered.” N.Y. Pen. L. § 170.00(7). “Under Section 170.20, an
officer has probable cause if the physical characteristics of
the allegedly forged document lead the officer to believe that
an individual is knowingly in possession of a forged or
fictitious document.” Ikezi v. City of New York, No. 14-CV-
5905, 2017 WL 1233841, at *12 (E.D.N.Y. Mar. 31, 2017); see also
Xifei Xu v. City of New York, No. 18-CV-1222, 2020 WL 2088301,
at *6 (S.D.N.Y. Apr. 30, 2020) (“[B]lased on [the officer’s]
observation and training, the appearance of Plaintiff's
Pennsylvania learner’s permit,” which bore text that had been
whited out and stamped over, “was sufficient to establish
probable cause for his arrest in violation of § 170.20.”).
The physical characteristics of Gerasimou’s tag at
least arguably met that standard. It is undisputed that
portions of the temporary paper license plate were cut off and
faded. A photograph of the document shows that half of the word
“The” in “The First State” (see notation “A” below), the letter
“T” in “Issue Date” (see “B” below), and the left edges of the
letter “xX” (see “C” below) are missing:

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Def. Exhibit J, ECF No. 20-10. Officer Cillis testified that,
based on his NYPD training and prior experience with forgery
arrests, the fact that words were cut off led him to believe
that the document was forged. Cillis Dep. 93:4-96:5; see also
Criminal Complaint, ECF No. 20-7 (stating that Gerasimou
“provided a forged Delaware temporary license plate and said
license plate is forged in that the words ‘Issue’ and ‘The First
State’ are cut off and not visible”). And Sergeant Brenes
testified that where “certain information [is] cut off on...

10

a paper plate,” this may indicate that the document is forged.
Brenes Dep. 58:16-59:2.°
The physical appearance of the document thus gave the
officers a reasonable basis to conclude the document was forged.
See Thompson v. City of New York, 70 N.Y.S.3d 830 (1st Dep’t
2018) (“[T]he police officer’s observations, based on his
training and experience with similar license plates[] provided a
reasonable basis for him to conclude that plaintiff’s temporary
plate was forged, granting him probable cause to arrest
plaintiff.”).
This Court has not found - nor has Plaintiff pointed
to - any case indicating that the officers violated clearly
established law by arresting Plaintiff based on the appearance
of his license plate. Indeed, several New York cases
demonstrate that similar physical discrepancies can serve as the
basis for a Section 170.20 violation. E.g., People v.
Doudoulgou, 126 N.Y.S.3d 839 (list Dep’t 2020) (complaint was
facially sufficient because it set forth “the bases for the
officer’s knowledge, in addition to his training and experience,
that [several] items [were] forged,” including that “the font on

6 That Sergeant Brenes was present and agreed with Cillis’s
determination further supports Cillis’s defense. E.g., Hart v. City of New
York, No. 11-CV-4678, 2013 WL 6139648, at *4-5 (S.D.N.Y. Nov. 18, 2013)
(concluding that the defendant had probable cause in part because the
information was relayed to and approved by NYPD sergeants).
11

the licence plate was larger than the font on a genuine plate,
and the plate lacked a hologram and issue date”); People v.
Xirum, 993 N.Y.S.2d 627, 628 (Sup. Ct. 2014) (defendant was
charged with Section 170.20 violation after officer observed him
“driving a vehicle with what is alleged to be a photocopied,
forged Pennsylvania 30-day temporary in-transit license plate”);
People v. Mansilla, No. 2006-NY042684, 2006 WL 2728657, at *1
(N.Y. Crim. Ct. 2006) (officer had reasonable cause to believe
defendants gave him forged resident alien cards because they
“appear[ed] to be laminated photocopies, and authentic cards are
of superior paper quality,” the printing was “of an inferior
quality to authentic cards,” and “none of the cards ... hada
seal”). At the very least, these cases demonstrate that the law
was not clearly established to the contrary. Or, said
differently, “officers of reasonable competence could disagree
on the legality” of Gerasimou’s arrest. Rohman, 215 F.3d.
216.
Gerasimou primarily argues that the officers lacked
probable cause because they possessed no evidence of his intent.
This argument contravenes settled law. An officer can have
probable cause to arrest “even without specific evidence on the
elements of knowledge and intent that will have to be proved to
secure a conviction at trial,” so long as the officer has
evidence that a defendant has engaged in conduct proscribed by
12

law. McGuire v. City of New York, 142 F. App’x 1, 3 (2d Cir.
2005). In the context of a Section 170.20 violation, courts
have held that it is not necessary for an officer to believe the
suspect knew he possessed a forged instrument. E.g., Thompson,
N.Y.S.3d at 830 (noting that “it was not necessary for the
police to show that plaintiff had the intent necessary to secure
a conviction of third-degree criminal possession of a forged
instrument”); Medina v. City of New York, No. 20-CV-0797, 2021
WL 1700323, at *3 (S.D.N.Y. Apr. 29, 2021) (same); Xifei Xu,
2020 WL 2088301, at *6 (same). Because it was objectively
reasonable for the officers to believe they had probable cause
to arrest Gerasimou, they are entitled to qualified immunity.
Summary judgment is thus granted as to Gerasimou’s false-arrest
claims.’

7 Gerasimou’s complaint references state-law violations at times. At
one point, the complaint mentions “the false arrest . . . and violation of
the laws of the State of New York and federal law.” ECF No. 1 @ 90. I do
not read the complaint to assert independent state-law claims for false
arrest or failure to intervene. Even if it had, Plaintiff conceded in the
parties’ proposed joint pretrial order that only federal claims remain: “This
is an action under federal law pursuant to 42 U.S.C. § 1983 and § 1988.” ECF
No. 34 at 2. And in any event, a state-law false-arrest claim would fail for
the same reason as Gerasimou’s federal claim, given New York State’s own
qualified immunity doctrine. New York law “grant[s] government officials
qualified immunity on state-law claims except where the officials’ actions
are undertaken in bad faith or without a reasonable basis.” Jones v.
Parmley, 465 F.3d 46, 63 (2d Cir. 2006). Given my conclusion that it was
reasonable for the officers to believe they had probable cause to arrest,
this doctrine would apply to a state-law claim as well.
13

B. Count Four: Section 1983 and 1986 Failure-to-Intervene
Claim
Gerasimou’s failure-to-intervene claim also fails. A
police officer may be liable for failure to intervene under
Section 1983 where “(1) the officer had a realistic opportunity
to intervene and prevent the harm; (2) a reasonable person in
the officer’s position would know that the victim’s
constitutional rights were being violated; and (3) the officer
does not take reasonable steps to intervene.” Jean-Laurent v.
Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008), aff'd, 461
F. App’x 18 (2d Cir. 2012). Given the second element, probable
cause again defeats liability, and an officer’s awareness of

“arguable” probable cause will entitle him or her to qualified
immunity. “A police officer cannot be held liable in damages
for failure to intercede unless such failure permitted fellow
officers to violate a suspect’s clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d
Cir. 1997); see also Grice v. McVeigh, 873 F.3d 162, 169 (2d
Cir. 2017); Corso v. City of New York, No. 17-CV-6096, 2018 WL
4538899, at *11 (S.D.N.Y. Sept. 20, 2018); cf. Jackson v.
Tellado, 236 F. Supp. 3d 636, 656 (E.D.N.Y. 2017) (despite
granting qualified immunity to arresting officers based on
arguable probable cause, the court denied qualified immunity to
observing officer who, unlike the arresting officers, was not
aware of the facts reasonably indicating its lawfulness).
Because both Cillis and Brenes had arguable probable cause,
Gerasimou “cannot establish that a reasonable person in the
officers’ position would know of any constitutional violation

such that they would have a duty to intervene.” Anderson v.
City of New York, No. 15-CV-6246, 2017 WL 4712790, at *7
(S.D.N.Y. Sept. 25, 2017). Accordingly, this claim, too, must
be dismissed.
Likewise, the existence of arguable probable cause is
fatal to Gerasimou’s attempt to hold the officers liable for
“neglect to prevent” under Section 1986. Given that no
violation of clearly established law transpired, there could be
no clearly established obligation to prevent one. Moreover,
Section 1986 explicitly requires an underlying conspiracy under
42 U.S.C. § 1985. See 42 U.S.C. § 1986; see also Brito v.
Arthur, 403 F. App'x 620, 621 (2d Cir. 2010) (identifying “the

existence of a conspiracy” as an essential element of a Section
1986 claim). Because the judge previously assigned to this case
already dismissed Gerasimou’s Section 1985 claim, no underlying
conspiracy claim remains. See ECF No. 28. Summary judgment is
therefore granted as to Gerasimou’s cause of action for failure
to intervene.
IV. Conclusion
For the foregoing reasons, the Court grants
Defendants’ motion to reconsider and dismisses Plaintiff’s
remaining claims. Because no claims remain, the Clerk of Court
is respectfully directed to enter judgment and close the case.
The Clerk of Court is also directed to amend the caption of this
action to remove the City of New York as a defendant and replace
“John Brenes” with “Scott Brenes.”

SO ORDERED.

/s/ Eric Komitee
EBRIC KOMITEE
United States District Judge

Dated: January 12, 2022
Brooklyn, New York

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307471. Public record. Not legal advice.